IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
v.
THE STATE OF TEXAS
FROM THE SECOND COURT OF APPEALS
TARRANT COUNTY
O P I N I O N
In determining whether a defendant voluntarily consented to a search, we consider the totality of the circumstances, and the burden is on the State to prove by clear and convincing evidence that the consent was voluntary. Clear and convincing evidence is "evidence indicating that the thing to be proved is highly probable or reasonably certain." (1) It is hard to believe that the trial court could find that it was highly probable or reasonably certain that Appellant consented to the urine test when she was not given statutory warnings prior to consenting to giving a urine specimen and when both officers who testified about the consent stated that they did not inform Appellant that she could refuse to provide a sample without losing her driver's license.
Nonetheless, the majority claims that because Appellant was given statutory warnings about giving a blood sample and consented, the officers were not obligated to inform her that the consequences of failure to consent to giving a breath or blood specimen do not apply to failure to give a urine sample. The majority also says that, although the police failure to inform Appellant of her right to refuse the urine test was a relevant factor in assessing the voluntariness of her consent, it was not controlling, and that her knowledge of her right to refuse consent is not determinative of whether her consent was voluntary. Presuming that the trial judge considered these factors and assessed the credibility and demeanor of the witnesses, the majority holds that the trial judge properly found that the State proved by clear and convincing evidence that the consent was voluntary. How do these factors, each of which lean in Appellant's favor and each of which indicate that consent was uninformed, add up to highly probable or reasonably certain evidence that Appellant's consent to give a urine sample was voluntary?
In addition to the fact that Appellant was not informed of her right to refuse consent and was not informed that the consequences of refusing to provide a blood sample did not apply to a urine sample, the court of appeals also considered the fact that 1) Appellant had been arrested, transported to the hospital in handcuffs, and was in custody at the time she consented, indicating that she was not aware that she was free to refuse to submit a urine sample; 2) that she was induced to consent in order to avoid additional pain from the repeated needle sticks, which were causing collapsed veins and bruising; and 3) that her license was very important to her and she only consented because she did not want to lose her license. The record additionally indicates that Appellant asked for her attorney repeatedly throughout this process and the officers told her that she could call her attorney after she completed the breath tests. Perhaps if the officers had allowed Appellant to call her attorney, then her attorney could have informed her of her right to refuse to consent to a urine sample without losing her license, rather than being misled by the officers. Since there was not a single witness who claimed that Appellant's consent was informed, it is difficult to see how the consent could be considered voluntary.
I disagree with the majority's contention that the court of appeals failed to give proper deference to the trial court's findings. (2) The court of appeals properly reviewed the evidence and held that there was not clear and convincing evidence to prove that Appellant voluntarily consented to the urine sample. Therefore, I respectfully dissent.
Meyers, J.
Filed: November 1, 2006
Publish
1. 2. Although findings were requested when the trial judge ruled on the motion to suppress,
there is nothing in the record indicating that findings of fact were entered.